U.S. Constitutional Law
790:401:H6, Summer 2009
Tuesdays and Thursdays, 6pm-9:30pm
Hickman 211
David Andersen
davander@rci.rutgers.edu
Office: 305 Hickman Hall
Course website: https://sakai.rutgers.edu
Office Hours: Tuesday and Thursday
9:30pm - 10:30pm
The Constitution does not say, “Read me broadly,” or, “Read me narrowly.”
That decision must be made as a matter of political theory, and will depend on
such things as one’s view of the springs of judicial legitimacy and of the relative
competence of courts and legislatures in dealing with particular types of issues.
Judge Richard A. Posner, Seventh Circuit Court of Appeals
This course is an introduction to constitutional law and legal decision-making in the
United States. During the abbreviated summer semester we will cover some of the major
areas of United States constitutional law, focusing on how the Supreme Court uses the
constitution to construct and guide American government. In order to understand how
the court interprets the constitution, we will use several substantive areas of conflict to
bring this into focus. The course will thus be structurally broken into three different
sections. The first section will highlight the origins of the constitution and the judicial
branch, explaining how exactly that branch functions and approaches constitutional
questions. The second section will enter into the substantive topic of the constitutional
separation of powers, using the legislative and executive branches to illustrate how the
court has interpreted and in some sense created the other two branches accepted set of
powers. The third section will focus more upon more personal liberties, using the court’s
interpretations of personal freedom of contracts, property rights and voting rights to
understand some of the more individual repercussions of constitutional interpretation.
Throughout the duration of the summer semester, the goal of this course is to provide
instruction in how the court functions to create constitutional meaning and guide the
course of American life.
This course, as opposed to those presented in a law school setting, will focus upon the
politics of court decision-making, as opposed to the strict legal repercussions of them.
We will approach court decisions as malleable decisions set in time, rather than as
concrete determinations of right and wrong, and focus upon how legal questions are
framed, rather than what the “correct” decision should be. The goal of this process is to
expand your analytical skills, forcing a recognition that every constitutional question in
fact remains questionable.
Finally, please be aware that this course requires a lot of work. Each day you will be
expected to come to class having fully read and thought about the assigned readings.
Briefs on the cases will be due daily. Please realize that these readings are not simple and
will require much more than a cursory skimming. Much of what we will read consists of
direct Supreme Court opinions, which are dense and legalistic writings, requiring slow
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and thoughtful reading in order to properly comprehend. If you are not prepared or able
to put the time in required to complete this work, you would be better served by taking a
different course.
Academic Integrity
“Academic freedom is a fundamental right in any institution of higher learning. Honesty
and integrity are necessary preconditions of this freedom. Academic integrity requires
that all academic work be wholly the product of an identified individual or individuals.
Joint efforts are legitimate only when the assistance of others is explicitly acknowledged.
Ethical conduct is the obligation of every member of the University community, and
breaches of academic integrity constitute serious offenses.”
http://teachx.rutgers.edu/integrity/policy.html#Integrity (emphasis added)
I expect that all of the work you hand in to me is work that you have produced on your
own and that any information you obtain from other sources will be properly cited.
While I encourage students to study together, when you submit work for this class, it
must be wholly your own. If you have any questions or concerns about plagiarism,
please see the university policy on academic integrity at the URL above or see me.
Plagiarizing someone else’s work or other suspected violations of academic integrity will
be referred to the appropriate Dean for investigation. If you have any questions or
concerns about my expectations, please do not hesitate to ask me.
Disability Accommodation
“Rutgers University is committed to providing an environment where all students can
equally participate in the academic experience. The accommodation of students with
disabilities who meet admissions requirements is mandated by both federal and state law.
Rutgers University supports these laws by pledging to comply with their requirements.”
http://www.rci.rutgers.edu/~polcomp/fachand.shtml#sec1
If you anticipate needing any type of reasonable accommodation in this course or have
questions about accessibility, please contact me immediately.
Required texts
The following book is available at the Douglass Co-Op.
O’Brien, David M. 2008. Constitutional Law and Politics. Vol. 1. New York: W.W.
Norton. [Note: this is a two volume text but we are only using Volume 1 for this course]
There will also be many on-line readings that will be posted on the course’s sakai
website. You will need to be able to access sakai in order to function in this course.
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Course requirements and grading
Briefs (20%): For nearly every class you will be assigned 3 cases to be briefed and turned
into the sakai website prior to the start of the next class. Late briefs will not be accepted.
See attached page on Case Briefing for details on how to turn in your briefs.
Analytic exam (20%): Thursday, July 17th. This is an in-class exam that will ask you
several short answer questions about judicial review and constitutional decision-making.
Case law exam 1 (25%): This exam will use hypothetical cases involving constitutional
questions on the separation of powers cases and include case identification questions.
Case law exam 2 (25%): Same format as above. The hypothetical will involve questions
from the individual protections cases.
Class attendance/participation (10%): Attendance is essential. You cannot learn the
material in this class without being present during the class period. Particularly during the
summer, when we have a shorter term and longer class periods, missing one class can put
you way behind. If you have any conflicts with this class time, I suggest you opt for a
different course. I will call on students regularly and students who are not prepared (or
are absent) will not receive credit for participation.
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Schedule of readings (changes may be made with a week’s notice)
NOTE: Readings from the textbook are in bold followed by a page number
Readings on the sakai site are underlined.
Tuesday, July 7: Introduction to the course. Brief writing.
O’Brien (1-21), The Constitution of the United States
O’Brien (1091-1096), Current Justices
O’Brien (1083-1086), Briefing a Case
I.
The Supreme Court – How it functions and its powers
Thursday, July 9: Judicial Review, Jurisdiction and Court Operations
Federalist #78. Also available at: http://www.constitution.org/fed/federa00.htm.
O’Brien (23-38), Judicial Review
Marbury v. Madison
Eakin v. Raub
O’Brien (102-127), Jurisdiction
Lujan v. Defenders of Wildlife (141-145)
Hein v. Freedom from Religion Foundation, Inc. (145-150)
Baker v. Carr (150-162)
Elk Grove Unified School District v. Newdow (166-173)
O’Brien (175-190), Functioning of the Court
Tuesday, July 14: The Politics of Constitutional Interpretation
O’Brien (67-97), Constitutional Interpretation
O’Brien (191-192) Southern Manifesto
Meese, Edwin, “The Battle for the Constitution: The Attorney General Responds
to His Critics.” 1985.
Brennan, Willam J. “The Constitution of the United States: Contemporary
Ratification,” talk delivered at Text and Teaching Symposium, Georgetown
University, Washington, D.C., Oct. 12th, 1985
Scalia, Antonin. Remarks to the Woodrow Wilson International Center for
Scholars, 2005.
Breyer, Stephen J. Excerpts from Active Liberty. 2005.
Post, Robert, “Theories of Constitutional Interpretation”. Representations, No.
30, Special Issue: Law and the Order of Culture. (Spring, 1990), pp. 13-41.
DUE: 2-3 page paper defending your own view of constitutional interpretation
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Thursday, July 16: EXAM 1.
The exam will be followed by lecture/discussion about the concept of separation of
powers and presidential powers. There are no reading assignments. In class we will
cover Executive Power and Domestic Crises:
Federalist #51
Letter from Abraham Lincoln to AG Hodges, of Kentucky, April 4, 1864
Youngstown Sheet and Tube Co. v. Sawyer (344-359)
New York Times Co. v United States (359-368)
Ex parte Milligan (279-285)
II. Separation of Powers
Tuesday, July 21: Executive War Making War and Detention Powers
O’Brien (232-237), Office and Powers
O’Brien (237-238), Constitutional History - Federalist #70
United States v. Curtis Wright (241-243)
O’Brien (264-269), War Making and Emergency Powers
O’Brien (269-275), Constitutional History – Citizens etc.
Ex parte Milligan (279-285)
Korematsu v. United States (285-295)
Rasul v. Bush (295-299)
Hamdi v. Rumsfeld (300-313)
Hamdan v. Rumsfeld (313 – 325)
Boumediene v. Bush (sakai)
O’Brien (325-330), War Powers Act
O’Brien (330-334), USA Patriot Act
Thursday, July 23: Classic Congressional Power
O’Brien (542-553), The Classic View of Congress’s Legislative Powers
McCulloch v. Maryland (553-564)
Gibbons v. Ogden (564-569)
O’Brien (569-575), Legal Formalism to the New Deal Crisis
United States v. EC Knight Company (576-581)
Hammer v. Dagenhart (581-585)
O’Brien (667-671), Taxing and Spending Powers
Steward Machine Company v. Davis (671-675)
South Dakota v. Dole (677-680)
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Tuesday, July 28: Modern Congressional Power
O’Brien (585-590)
National Labor Relations Board v. Jones and Laughlin Steel (591-597)
United States v. Darby Lumber Company (598-601)
Wickard v. Filburn (602-605)
Heart of Atlanta Motel v. U.S. (605-614)
U.S. v. Lopez (614-626)
City of Boerne v. Flores (630-641)
U.S. v. Morrison (642-654)
Gonzalez v. Raich (654-663)
Granholm v. Heald (663-667)
Thursday, July 30: EXAM II
III. Individual Protections
Tuesday, August 4:
James Madison, Property (sakai)
O’Brien (988-994), Contracts
Fletcher v. Peck (988-994)
Trustees of Dartmouth College v. Woodward (997-1001)
Charles River Bridge v. Warren Bridge Co. (1002-1008)
Home Building and Loan v. Blaisdell (1009-1014)
City of El Paso v. Simmons (1014-1016)
United States Trust Co.of NY v. New Jersey (1016-1019)
O’Brien (1054-1057), The Takings Clause and Just Compensation
Hawaii Housing Authority v. Midkiff (1060-1061)
Lucas v. South Carolina (1062-1068)
Kelo v. New London (1068-1077)
Dolan v. Tigard (sakai)
Nollan v. California Coastal Commission (sakai)
Thursday, August 6:
O’Brien (1020-1032), The Development and Demise of Liberty of Contract
The Slaughterhouse Cases (1033-1038)
Munn v. Illinois (1038-1040)
Lochner v. New York (1040-1046)
Muller v. Oregon (1046-1049)
West Coast Hotel v. Parrish (1049-1052)
Lincoln Federal Labor Union v. Northwestern Iron & Metal (1052-1059)
O’Brien (833-844), Representative Government and the Franchise
South Carolina v. Katzenbach (844-850)
O’Brien (855-863), Voting Rights and Reapportionment
Gomillion v. Lightfoot (865-866)
Baker v. Carr (150-162)
Reynolds v. Sims (873-879)
Shaw v. Reno (891-896)
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Tuesday, August 11: FINAL EXAM.
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Case Briefing
How to brief a case:
See O’Brien (1083-1086). We will also discuss case briefing in class on Tuesday, July
7th.
Due dates for briefs:
Briefs will be due at each class, except on exam days and one exception when a paper
will be substituted for briefs (July 14). For each class you will be assigned to complete 3
briefs out of the total number of cases to be read for the next class, which must be
uploaded to sakai before that class. You will also find it helpful to bring a printout of
your briefs to class, as we will be discussing each case together. You are expected to
know the cases that you are assigned to brief, but also those that others are assigned. You
will be considered an “expert” for those that you brief and will be expected to participate
strongly in class discussion on those cases.
Assignments:
Tuesday, July 7: Nothing due
Thursday, July 9: 3 briefs
Everyone - Eakin v Raub
Group 1 - Lujan v. Defenders of Wildlife (141-145)
Baker v. Carr (150-162)
Group 2 - Hein v. Freedom from Religion Foundation, Inc. (145-150)
Elk Grove Unified School District v. Newdow (166-173)
Tuesday, July 14: 2-3 page paper
Everyone - 2-3 page paper explaining your personal views on constitutional
interpretation. (15 points - will be discussed in class)
Thursday, July 16: Nothing due, Exam day
Tuesday, July 21: 3 briefs
Everyone - United States v. Curtis Wright (241-243)
Group 1 - Ex parte Milligan (279-285)
Korematsu v. United States (285-295)
Group 2 - Rasul v. Bush (295-299)
Hamdi v. Rumsfeld (300-313)
Group 3 - Hamdan v. Rumsfeld (313 – 325)
Boumediene v. Bush (sakai)
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Thursday, July 23: 3 briefs
Everyone - McCulloch v. Maryland (553-564)
Group 1- United States v. EC Knight Company (576-581)
Hammer v. Dagenhart (581-585)
Group 2 - Steward Machine Company v. Davis (671-675)
South Dakota v. Dole (677-680)
Tuesday, July 28: 3 briefs
Group 1 - National Labor Relations Board v. Jones and Laughlin Steel (591-597)
United States v. Darby Lumber Company (598-601)
Wickard v. Filburn (602-605)
Group 2 - Heart of Atlanta Motel v. U.S. (605-614)
U.S. v. Lopez (614-626)
City of Boerne v. Flores (630-641)
Group 3 - U.S. v. Morrison (642-654)
Gonzalez v. Raich (654-663)
Granholm v. Heald (663-667)
Thursday, July 30: Nothing due, Exam day
Tuesday, August 4: 3 briefs
Group 1 - Fletcher v. Peck (988-994)
Trustees of Dartmouth College v. Woodward (997-1001)
Charles River Bridge v. Warren Bridge Co. (1002-1008)
Group 2 - Home Building and Loan v. Blaisdell (1009-1014)
City of El Paso v. Simmons (1014-1016)
United States Trust Co.of NY v. New Jersey (1016-1019)
Group 3 - Hawaii Housing Authority v. Midkiff (1060-1061)
Lucas v. South Carolina (1062-1068)
Kelo v. New London (1068-1077)
Thursday, August 6: 3 briefs
Everyone - Lochner v. New York (1040-1046)
Group 1 - The Slaughterhouse Cases (1033-1038)
Munn v. Illinois (1038-1040)
Group 2 - Muller v. Oregon (1046-1049)
West Coast Hotel v. Parrish (1049-1052)
Group 3 - South Carolina v. Katzenbach (844-850)
Baker v. Carr (150-162)
Group 4 - Reynolds v. Sims (873-879)
Shaw v. Reno (891-896)
Tuesday, August 11: Nothing due, Final Exam
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How to turn in briefs:
The sakai website has folders in the Drop Box for each class date that briefs are due. You
should upload your file to the appropriate folder. Please name your file as follows:
LASTNAME.DATE.
For example, if I were handing in briefs for August 6th, I would name the file:
Andersen.Aug6
Each brief is worth five points and I will grade on the following scale:
Well done brief: 5 points
Not well done brief: 2-3 points
Not done brief : 0 points
Brief grades:
You will brief 18 cases during the course of the semester and write one paper. Brief
points and the paper will be combined to correspond to grades on a 100 point scale that
will make up 20% of your final grade.
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